State v. Davis

• Decision Date: 29 March 1913
• Citation: 130 P. 962,9 Okla.Crim. 94,1913 OK CR 80
• Parties: STATE EX REL. TUCKER v. DAVIS ET AL.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

130 P. 962

9 Okla.Crim. 94, 1913 OK CR 80

STATE EX REL. TUCKER v. DAVIS ET AL.

Court of Criminal Appeals of Oklahoma

March 29, 1913

Syllabus by the Court.

(a) Where a person is confined in jail pending a trial upon a criminal prosecution, he has the right to have an opportunity to consult freely with his counsel without having any person present to hear what passes between them, whose presence is objectionable to such defendant.

(b) It is the duty of officers having custody of persons charged with the commission of crime to afford them a reasonable opportunity to privately consult their attorneys, and no officer has the right to be present and hear what is said during such consultation; but the officers must take such precautions as may be necessary, according to the circumstances of each case, to prevent the escape of such prisoners.

(c) It is the duty of the trial courts of Oklahoma to make such orders as will secure to every person imprisoned upon an accusation of crime a reasonable opportunity to consult privately and freely with his counsel, without let or hindrance from any sheriff, jailer, or other officer.

(d) As to just when and where consultations between prisoners and their attorneys may be had will vary with the circumstances of each case, within the discretion of the officer having the custody of such prisoner; but this discretion is subject to the review of the courts, and it must not be arbitrarily used.

(a) The Criminal Court of Appeals is charged with the duty of seeing that we have a uniform system of criminal jurisprudence in Oklahoma, and it is the court of last resort and the supreme arbitrator for the settlement of all questions relating to criminal law in this state.

(b) The Criminal Court of Appeals, independent of authority granted by statute, has the inherent power to enforce obedience to its orders by contempt proceedings. Such power is essential to the due administration of justice.

(c) It is the duty of all officers of the state to render unquestioning obedience to the judgments of the courts. If the courts are in error, they alone have the power to correct such errors.

Contempt proceedings by the State, on the relation of H. S. Tucker against Barney Davis and another. Judgment for relator.

Owing to the disposition made of this case, it is not necessary to make more than a condensed statement of the facts involved. H. S. Tucker was confined as a prisoner in the county jail of Custer county, Okl., upon a charge of rape pending against him in the superior court of said county. He presented an application to the Criminal Court of Appeals, in which it appears that, being unable to employ counsel to conduct his defense, the judge of said superior court had appointed T. B Norfleet and P. S. Hillman, members of the Custer county bar to defend him; that, owing to the gravity of the charge pending against said Tucker, it was necessary that he should have an opportunity to confer privately and fully with his said attorneys with reference to his defense in this case but that Barney Davis, sheriff of Custer county, and W. M. Van Bibber, jailer of said county, refused to permit the said Tucker to confer with his said counsel, except in the presence of said sheriff or jailer. It was further made to appear that there was no suitable place in the jail at which a private conference could be had, but that some room might be selected in the courthouse, which was adjacent to the jail, in which such private conference could be had. It was further made to appear that Hon. J. W. Lawter, judge of the superior court of Custer county, was absent from the county, and therefore could not afford the relief desired. Upon this showing the Criminal Court of Appeals issued an order addressed to said sheriff and said jailer of said Custer county, Okl., ordering and directing that they at any reasonable time, upon the request of his said attorneys of record, should take said H. S. Tucker from the jail to some room in the courthouse of said county, to be selected by said officer or officers, and that the said H. S. Tucker be there permitted to consult privately with said attorneys. A copy of said order was served upon both the sheriff and jailer of said Custer county. It was further made to appear to the court that after the service of such order, and in total disobedience thereof, said sheriff and said jailer of Custer county refused to permit the said Tucker to privately consult his said attorneys as directed in said order, although so requested to do. Thereupon a citation was addressed to both of said officers, requiring them to appear before the Criminal Court of Appeals and show what cause, if any, they had for disobeying said order, and why they should not be punished for contempt. The matter coming on to be heard, both of said officers appeared and denied that they had disobeyed the said order of the court. A great deal of testimony was offered by both sides, a detail statement of which is unnecessary.

One confined in jail awaiting trial is entitled to an opportunity to freely consult with his counsel privately and apart from any one objectionable to him.

Thomas W. Conner, of Oklahoma City, P. S. Hillman, of Clinton, and Thomas B. Norfleet, of Arapaho, for relator.

Phillips & Mills, of Arapaho, and A. C. Cruce, of Oklahoma City, for respondents.

FURMAN, J. (after stating the facts as above).

First. It would be a cheap subterfuge of and shameless mockery upon justice for the state to put a man on trial in its courts charged with an offense which involved his life, liberty, or character, and then place him in such a position that he could not prepare to make his defense. It would be just as reasonable to place shackles upon a man's limbs, and then tell him that it is his right and duty to defend himself against an impending physical assault. If the right of defense exists, it includes and carries with it the right of such freedom of action as is essential and necessary to make such defense complete. In fact, there can be no such thing as a legal trial, unless both parties are allowed a reasonable opportunity to prepare to vindicate their rights. This is so fundamentally just, and is so highly prized by the people of Oklahoma, that it is embodied, not only in our statute law, but is further safeguarded and rendered inviolate by a number of constitutional provisions. Section 15, Williams' Const. of Okl., in express terms declares that no person shall be deprived of life, liberty, or property without due process of law. There can be no such thing as due process of law where a party to a case has been deprived of an opportunity to prepare for trial. Section 28, Williams' Const. of Okl., provides that in all criminal prosecutions the accused shall have a right to a speedy public trial by an impartial jury of the county in which the crime shall have been committed; that he shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his own behalf; and that he shall have the right to be heard by himself and by counsel.

Due process of law would be a libel on justice if it did not carry with it the absolute right of preparation for trial. The right to be informed of the nature and cause of the accusation against him, and have a copy thereof, would be only so much idle buffoonery if the accused was not allowed to prepare to defend himself. All of these rights would amount to but little if the accused did not also have the right to be represented by counsel who was learned in the law and trained in the matter of presenting cases in court. These principles are not only embodied in our Constitution, but they or similar provisions will be found in the Constitution of every state of the American Union and also in the Constitution of the United States. They therefore cannot be minimized, but constitute the fundamental and universal principles of American criminal law; and no Legislature or court can ignore or violate them. The absolute right of every defendant in a criminal case to be represented by counsel learned in the law was discussed and recognized by the unanimous decision of this court in the case of Baker v. State, 130 P. 820, in an opinion by Judge Doyle, decided at the present term of the court. The right to be heard by counsel would, in the language of Saint Paul, 1 Cor. 13, 1, "become as sounding brass, or a tinkling cymbal," if it did not include the right to a full and confidential consultation with such counsel, with no other persons present to hear what was said. This is a material, substantial right, essential to justice.

Section 257, Comp. Laws 1909, among other things, provides that it is the duty of an attorney and counselor at law "to maintain...